Cork garda brings challenge over sanction received after wrong apartment entered in search

A Cork garda has brought a High Court challenge over being disciplined after officers, including members of the Armed Support Unit, searching for drugs entered the wrong apartment.

The action has been brought by Garda Derry O'Brien, who was given a formal caution by his superiors, despite the fact what occurred was "a genuine error" and all the officers involved had acted "in good faith."

In February 2021, gardaí in Cork were, based on confidential information, investigating a known drug user who was believed to be storing quantities of diamorphine for sale and supply from her apartment in the city.

Garda O'Brien, who is stationed at Anglesea Street Garda Station in Cork, made inquiries about obtaining a search warrant for the apartment.

He checked the suspect's address on the Garda Pulse computer system and visited the location of the apartment complex for suitable access and egress options.

Support was sought from the Garda's Armed Support Unit and a search warrant was obtained. When the warrant was executed, and the apartment secured, it was established the premises entered was not the intended target.

It was occupied by an unrelated third party.

The apartment was not searched, a garda sergeant spoke to the occupant, and the officers departed the premises shortly after gaining entry.

It was subsequently established the address of the intended target was not the same as what was recorded on the Pulse system.

Unusually, there were three apartments in the complex that have the same number, but slightly different addresses.

Following a complaint by the occupant, the Garda Síochána Ombudsman Commission (Gsoc) opened an investigation.

In his action Garda O'Brien claims Gsoc recommended consideration be given to the bringing of disciplinary proceedings against him.

Following Gsoc's findings, he said his superiors opened disciplinary proceedings which resulted in a finding being made against him.

While the Garda Superintendent investigating the matter accepted a genuine error had been made, that officer deemed a caution was the appropriate, fair and necessary sanction to impose for what was deemed to be an alleged "neglect of duty" by Garda O'Brien.

Garda O'Brien appealed the sanction to an Assistant Commissioner, who upheld the sanction.

Garda O'Brien claims that in breach of fair procedures he was not given an opportunity to make submissions on the matter before the finding against him was made.

He also claims he was not asked for submissions when his request for a review of the finding was before the Assistant Commissioner.

In judicial review proceedings against the Garda Commissioner, Garda O'Briens seeks various orders and declarations including an order quashing the decision he had breached Garda discipline and should be sanctioned by way of a caution.

Represented by Kieran Kelly Bl, instructed by Carey Murphy & Partners Solicitors, Garda O'Brien also seeks to have the finding of the review of the sanction he was allegedly in neglect of his duty quashed.

He further seeks declarations that the disciplinary proceedings brought against him were contrary to natural justice, law and fair procedures.

The matter came before Ms Justice Niamh Hyland.

The judge, on an ex-parte basis, granted permission to bring the challenge.

The matter will return before the court in November.